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A Private Sector Polygraph Solution
for the Anti-Border Corruption Act of 2010
By CHARLES N. PAINTER, PhD, PMP
 

The polygraph requirements of the Anti-Border Corruption Act of 2010 mandate that U.S. Customs and Border Protection (CBP) initiate 100% polygraph testing of law enforcement applicants by January 2013. The act is designed to address significant corruption problems within the CBP and a spike in corruption cases in recent years. Challenges confronting CBP management include the small number of qualified polygraph examiners available within federal agencies, the high demand for these examiners, and the availability of finite training resources. To ensure that the act's polygraph requirements are met within the necessary timeline, CBP should aggressively pursue federally qualified private sector polygraph examiner resources to temporarily augment its existing staff. A partnership between the government and private industry can address CBP's corruption concerns immediately while giving the government time to increase its internal polygraph testing and training resources to address the needs of the agency in the future.

The Anti-Border Corruption Act of 2010

On January 4, 2011, President Obama signed Public Law 111-376, which is more widely known as the Anti-Border Corruption Act of 2010. The act is designed to strengthen the ability of CBP to evaluate the suitability of applicants for employment, assess the continued suitability of existing law enforcement employees, and address increasing incidents of corruption within the CBP. Broadly considered, the act seeks to implement 100% applicant polygraph testing of CBP law enforcement applicants, and mandates that CBP clear its existing backlog of reinvestigations of current employees (Anti-Border Corruption Act, 2010). In order to meet the specific polygraph requirements of the act within the mandated timelines, CBP management faces significant challenges. Federal polygraph resources alone are insufficient to allow CBP to meet the requirements of the act. As a result, CBP should aggressively pursue the contract use of federally qualified private sector polygraph examiners through a managed services procurement to meet the goal of implementing polygraph testing of all CBP applicants within the required timelines.

The specific requirements of the act mandate that the Secretary of Homeland Security (DHS) ensure that within two years of the act's enactment (i.e. January 2013), all applicants for law enforcement positions with CBP be afforded preemployment polygraph testing. The law also requires that by 180 days after enactment, CBP initiate background investigations for all of its law enforcement personnel. The act requires DHS to make periodic reports on CBP's progress to the U.S. House Committee on Homeland Security and the U.S. Senate Committee on Homeland Security and Governmental Affairs (Anti-Border Corruption Act, 2010). Under the law, all CBP applicants will have to undergo polygraph testing along with a standard background investigation before they are offered employment with CBP. Current agents will not be required to undergo polygraph testing as part of the act (U.S. Border Patrol, Polygraphs, 2011).

CBP Corruption Issues and Causes

S. Rep. No. 111-338 (2010) that accompanied the legislation through Congress details the significant corruption problems encountered by CBP that the act is designed to address. It also elaborates on an exceptional spike in the number of improper conduct cases within CBP in recent years. According to this Congressional research and the DHS Inspector General, since 2003, 129 CBP officials have been arrested on breach of trust charges, and three-fourths of them were arrested for "mission-compromising acts of corruption" (McCombs 2011). In 2009 alone, CBP officials opened 576 investigations on allegations of illegal activities. CBP management attributes the increase in criminal cases to a rapid rise in the hiring of new personnel. To further illustrate this trend, the number of CBP agents has doubled between fiscal year (FY) 2002 and FY 2009. The agency reports a corresponding expansion in employee corruption cases of 42% between FY 2005 and FY 2010.

For some experts, the most alarming aspect about these statistics is the increasing present and future threat posed by the attempted corruption of CBP law enforcement personnel by Mexican drug trafficking organizations (DTOs). The U.S. Department of Justice (DOJ) identifies DTOs as the greatest organized crime threat to U.S. national security (DOJ, 2008). CBP management cites growing attempts by DTOs to bribe and/or intimidate CBP agents. They also note greater numbers of occurrences in which DTOs are attempting to infiltrate the CBP by directing individuals under their control to take CBP entrance examinations (New Border War, 2010). The great majority of these attempts were discovered through the use of the polygraph. McCombs (2011) quotes former CBP Commissioner Alan Bersin as stating, "The powerful Mexican drug organizations have stepped up efforts to infiltrate the agency as they become more desperate to get people and drugs across a border that has more agents, barriers, and technology." CBP's Assistant Commissioner for Internal Affairs James Tomsheck supported this assessment when he declared, "there is a concerted effort on the part of transnational criminal organizations to infiltrate CBP through hiring initiatives and compromise of our existing agents and officers" (New Border War, 2010). Susan Ginsberg, a member of the 9/11 Commission and nonresident fellow at the Washington DC-based Migration Policy Institute, however, discounts increased hiring as the cause for the rise in CBP corruption cases. She instead attributes the phenomenon to the reaction of DTOs to the Mexican government's recent four-year crackdown on drug trafficking, noting, "They've responded by becoming more aggressive in their efforts with border officials" (Ginsburg, 2010).

Regardless of the exact causes, Ginsburg (2010) states that CBP has responded intelligently and aggressively to these and other threats by increasing the number of internal affairs investigators from 5 in 2006 to 214 in 2010 and its total staff to 624 people, up from 162 in 2006. CBP's Office of Internal Affairs (CBP-IA) has also implemented behavioral science and analytic research methods to detect potential corruption (Ginsburg 2010).

CBP Responses to Internal Corruption Issues

Within CBP-IA is the Credibility Assessment (Polygraph) Division with the stated mission to support IA's personnel security and applicant screening functions, as well as employee integrity and misconduct investigations and corruption detection activities. CBP's Credibility Assessment Division is considered to be one of the preeminent polygraph units in federal law enforcement. One reason for this overall excellence arguably stems from the experts running the division. According to Patrick Roche, a former director of the U.S. Customs Polygraph Program, the division's management includes: a former director of the National Center for Credibility Assessment's (NCCA's) predecessor polygraph school the Department of Defense Polygraph Institute; a former director of the DOJ Office of Inspector General Polygraph Program; and a former director of the U.S. Secret Service Polygraph Program (personal communication, November 8, 2011). Despite its excellent reputation, the CBP Polygraph Program has been unable to keep pace with the demand for applicant polygraph testing, given agency budget challenges and other polygraph testing requirements supporting IA's criminal and corruption investigations.

S. Rep. No. 111-338 (2010) makes a compelling case for the continued and even expanded use of applicant polygraph testing by CBP in the future as well. In 2009, less than 15 percent of applicants for CBP jobs received polygraph examinations. Significantly, CBP reported to Congress that of those applicants undergoing polygraph examinations, 60% were found ineligible for employment, primarily due to prior drug use or a criminal history that the applicant had not previously disclosed. Less than 1 percent of CBP applicants who successfully completed an applicant polygraph examination subsequently were disqualified in their required single scope background investigation (SSBI). By contrast, 22% of applicants who were not subjected to applicant polygraph testing were subsequently disqualified in their SSBI. Further, given that SSBI's cost an average of $3,200, the expanded use of applicant polygraph testing offers a more cost-effective and streamlined security process for CBP applicants. The numbers demonstrate that polygraph testing of applicants before the initiation of an SSBI has significant utility and offers a cheaper and faster method for effectively vetting candidates.

Challenges Facing CBP-IA

In order to meet the requirements of the act, CBP must administer approximately 4,000 pre-employment polygraph examinations annually over the period of 2013-2015. This represents a 3,200-examination increase over existing levels by January 2013 (Anti-Border Corruption Act, 2010). McCombs (2011) states that CBP must recruit, hire, train, and mentor at least 17 new polygraph examiners to have the number necessary to conduct 100% applicant screening by January 2013. Other sources estimate that as many as 50 to 55 new CBP polygraph examiners will ultimately be necessary to meet the testing requirements of the act given CBP-IA's Credibility Assessment Division's staffing levels as of 2009 (E-merging Technologies Group, Inc., 2009).

Several major challenges confront CBP management. There are a small number of qualified polygraph examiners available within federal agencies. These qualified examiners are in high demand, and there are finite training resources available to train new federal polygraph examiners. According to NCCA's Deputy Director Don Kraphol, there are approximately 700 federally qualified polygraph examiners available within the government and the private sector (personal communication, November 8, 2011). He also notes that there are currently 26 federal agencies within the intelligence and defense communities (including a handful of civilian agencies) that use the polygraph in intelligence and counterintelligence operations, applicant screening, and law enforcement. In virtually all agencies using the polygraph large testing backlogs exist, and limited polygraph examiner resources are stretched thin.

Federal polygraph examiners receive their initial training through the NCCA at Fort Jackson, SC. The center serves as the sole provider of federally accepted basic polygraph training (Joint Security Commission, 1994). Graduation from NCCA's 520-hour Psycho-physiological Detection of Deception (PDD) course is a prerequisite for examiners testing within federal programs. The basic PDD course is an academically challenging and comprehensive series of classes that prepares the polygraph examiners to conduct counterintelligence and law enforcement examinations within federal programs. NCCA's budget, resources, and logistical limitations put a ceiling on the number of new federal polygraph examiners that can be trained annually. Available NCCA training slots are in great demand by federal agencies, and a zero-sum training equation means that providing additional training slots to CBP to meet the requirements of the act will reduce the number of slots available to other agencies, potentially having an adverse effect on their respective intelligence and law enforcement missions. Directly hiring federally qualified polygraph examiners from other government programs also "robs from Peter to pay Paul" and again runs the risk of unfavorably affecting other critical national security activities.

An additional contributing factor to the present state of affairs is the amount of time necessary for newly trained federal polygraph examiners to develop the skills and experience necessary to become fully productive and to operate independently. After completing the basic PDD course, federal polygraph examiners are required by their agencies to complete an internship in which their work is carefully monitored by more senior examiners. These multifaceted mentoring programs run from six months to one year and require that the agencies commit experienced resources to teach and advise new examiners. After the internship period is complete, additional monitoring of new polygraph examiners is required, and in most cases, newly trained federal polygraph examiners do not become fully proficient until they have two to three years of experience. In the short term, mentoring newly trained polygraph examiners serves to draw down an agency's available testing resources.

The reality is that CBP lacks the polygraph examiner resources to meet the act's requirements of 100% law enforcement applicant polygraph testing by January 2013 (E-merging Technologies Group, Inc., 2009). To summarize, CBP cannot fully institute this critical applicant polygraph screening program using federal resources alone, because of these four factors:

  • • a restricted federal polygraph training pipeline
  • • strong competition for available basic polygraph examiner training among federal agencies
  • • the significant learning curve for new polygraph examiners
  • • the inability of other federal agencies to help.

A Private Sector Polygraph Solution

From the information presented so far, it appears that CBP must at least temporarily look to the private sector for federally qualified polygraph examiner resources to augment its existing staff if it is to meet the requirements and timelines of the act. Doing so will allow the agency to benefit from the experience of highly skilled retired examiners while supplementing or temporarily bridging manpower deficiencies until adequate numbers of new federal polygraph hires can be brought to bear on the problem.

Various intelligence and federal law enforcement agencies employ contractor polygraph examiners who meet or exceed the federal requirements of NCCA basic polygraph training, experience, and continuing education. For the most part, these polygraph examiners are federal retirees who possess significant experience in law enforcement screening, counterintelligence, and counter-narcotics testing. The average experience of available federally qualified contractor polygraph examiners exceeds 18 years (E-merging Technologies Group, Inc., 2009). This level of experience far surpasses that of federal polygraph examiners available in the government sector (Patrick Roche, personal communication, November 8, 2011).

A number of federal polygraph programs augment their staff through the use of annuitants and independent contractors. Both of these approaches have distinct disadvantages. Agencies generally severely restrict the number of annuitant positions made available for critical occupations such as polygraph examiners and limit the number of hours they are allowed to work. Also, retired federal polygraph examiners returning as annuitants can lose part of their retirement benefits under certain circumstances (Rehired Annuitants, 2011). Independent contractor polygraph examiners potentially offer greater numbers, lower cost, and more flexibility than annuitants. However, when procured individually through personal service contracts, independent contractor polygraph examiners place a significant burden on the government contracting offices managing their contracts and the polygraph programs supervising their testing. Agencies that have procured independent contractor polygraph examiners have generally discontinued their use for these reasons (Patrick Roche, personal communication, November 8, 2011).

The superior approach for CBP to act upon and carry out in the immediate future is to procure managed polygraph services through an individual company that has significant numbers of federally qualified polygraph examiners on staff. Several companies provide managed polygraph services to a number of federal intelligence and law enforcement agencies. Polygraph support procured through a managed services contract offers distinct advantages to CBP. These include:

Simple procurement processes: CBP's Procurement Directorate will have one contract to manage for polygraph services rather than many, and clearly defined performance standards and objectives can be better meshed with the production goals of CBP-IA's Credibility Assessment Division.

Strong resource and performance management: The Credibility Assessment Division will have a single point of contact for contractor polygraph examiner scheduling to support CBP hiring. At least one private sector firm can immediately provide as many as 30 federally qualified polygraph examiners with an average of 18 years of experience to augment government resources to meet the requirements of the act. As the requirements of the act are met, CBP can scale back or discontinue using contractor polygraph examiners as the government trains and hires new polygraph examiners (E-merging Technologies Group, Inc., 2009).

Qualification and training management: The Credibility Assessment Division will have a single point of contact to ensure contractor polygraph examiners continue to meet or exceed federal polygraph training and agency-specific qualification requirements throughout the life of the program.

From immigration enforcement to illegal drug interdiction to defending against terrorism, the integrity of the CBP is of vital importance to America's national security. The polygraph requirements of the Anti-Border Corruption Act of 2010 and their timely implementation are therefore critical to ensuring an effective personnel security applicant screening process for our nation's largest law enforcement agency. As this article has attempted to demonstrate, a managed services polygraph support approach to augment current and future government resources possesses the greatest potential of ensuring CBP's internal organizational security and overall success—in the near and medium term. This type of partnership between the U.S. government and private industry is sufficiently capable of comprehensively tackling the CBP's corruption concerns immediately while giving the federal government adequate time to increase its polygraph testing and training resources to the point where they can fully meet the staffing needs of the agency in the future.

References

The Anti-Border Corruption Act of 2010 (Public Law 111-376, 124 Stat. 4104-4105). E-merging Technologies Group, Inc. (2009, March 14). Polygraph support services capability statement. Paper presented to the Department of Homeland Security, U.S. Customs and Border Protection, Washington, DC.

Ginsburg, S. (2010). Securing human mobility in the age of risk: New challenges for travel, migration and borders. Washington, DC: Migration Policy Institute. Joint Security Commission (1994). Redefining security: A report to the Secretary of Defense and the Director of Central Intelligence. Washington, DC, 28 February 1994. McCombs, B. (2011, August 16). Border corruption cases grow. Arizona Daily Star. Retrieved from http://azstarnet.com/news/local/border/article_836254a0-34aa-5298-985e-9d421c4d3587.html

New border war: Corruption of U.S. officials by drug cartels. Hearing before the Senate Homeland Security and Governmental Affairs Subcommittee on State, Local and Private Sector Preparedness and Integration, 111th Congress. (2010) (Testimony of James F. Tomsheck).

Rehired annuitants. (2011). Retrieved November 18, 2011, from http://federalretirement.net/rehired_annuitant.htm. U.S. Border Patrol, polygraphs, and the anti-border corruption act of 2010. (2011). Retrieved November 7, 2011, from http://www.nbpc2366.org/content/polygraphs-and-anti-border-corruption-act-2010

U.S. Department of Justice. (2008). National Drug Threat Assessment 2009. Washington, DC: National Drug Intelligence Center. W. Henderson. (2010, December 21). Anti-Border Corruption Act of 2010. Web log comment. Retrieved from http://www.clearancejobsblog.com/cleared-news/anti-border-corruption-act-of-2010








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